5/29/2010

I recently reported that the judge in James O’Keefe’s criminal case ordered the destruction of the footage of James O’Keefe’s entry into Senator Mary Landrieu’s offices. O’Keefe has confirmed on Twitter that the Government returned his recording equipment, but deleted the footage from inside Sen. Landrieu’s offices.

This is especially concerning in light of the recent publication of court documents in which the Government admits that a member of Landrieu’s staff had told O’Keefe’s companions, on tape, that there had been no problem with the phones:

One of Senator Landrieu’s staff members (WITNESS 1) told BASEL and FLANAGAN that she did not report any phone problems and that the office was not experiencing any issues with the phone system.

I’m interested in the First Amendment implications of a court ordering the destruction of a copyrighted work with possible political relevance — with no apparent statutory authority, plea agreement provision, or national security concern to justify it.

I know of no law that justifies destruction of the taped footage. The federal forfeiture statute has no application. It applies only to crimes “punishable by imprisonment for more than one year” — in other words, felonies. Instead, O’Keefe pled to a misdemeanor punishable by a maximum sentence of 6 months. The forfeiture statute does not apply to such misdemeanors, and did not provide the Government with authority to retain the footage.

Surrendering the footage was not part of the plea agreement. You can read the plea agreement here. It contains no provision requiring surrender of the footage.

Finally, there is nothing in the footage that would be dangerous if leaked. O’Keefe has confirmed to me that he and his companions accessed only the public reception area of Landrieu’s office. Any member of the public could walk into the places that they walked. There are no deep dark secrets that the terrorists would learn upon viewing such footage.

In addition to the lack of justification for destroying the footage, we have a positive reason that it should have been turned over long ago: namely, this was potentially exculpatory evidence in O’Keefe’s criminal case. The Government has now admitted, in court documents signed by the Government lawyer, that the evidence shows O’Keefe’s intent was “not to actually tamper with the phone system, or to commit any other felony” but rather “to orchestrate a conversation about phone calls to the Senator’s staff and capture the conversation on video.” This means that the tape recording made by O’Keefe, when viewed in the light of O’Keefe’s history as an undercover video journalist, did not support the Government’s original charge that O’Keefe entered with the intent to commit a felony.

It sure sounds like the tape was exculpatory evidence, which the Constitution requires prosecutors to turn over immediately. Instead, they held on to the tape, and agreed after about two months to reduce the charge to a misdemeanor, which is all they could ever prove anyway.

It seems fairly obvious to me that the First Amendment would prohibit the judge from returning the footage to O’Keefe, and then ordering him not to publish it. Yet he managed to accomplish the same thing in ordering its destruction.

Now, the public will never learn what was on that footage. The footage would have revealed much about the soundness of the Government’s charges against O’Keefe. And, as the Government admits in court documents, it would have shown a member of Sen. Landrieu’s staff denying that there was any problem with the phones.

What possible justification is there for destroying such evidence? Any First Amendment experts want to weigh in?

UPDATE: Thanks to Instapundit for the link. Readers might also be interested in James O’Keefe’s first full public account of the New Orleans events, which I have published here.

The following is a document that James O’Keefe sent to me last night and has authorized me to publish. It is O’Keefe’s version of events in New Orleans. I believe this is the first time anywhere that he has publicly given his full statement of what occurred.

The document was drafted by lawyers based on O’Keefe’s statements, and was intended to be offered as the factual basis for his plea. O’Keefe confirmed for me that this document is an accurate account of what happened.

What Really Happened in New Orleans

Factual Basis

On January 25, 2010, Messrs. James O’Keefe, Stan Dai, Joe Basel, and Michael Flanagan (collectively “Defendants”) entered the Hale Boggs Federal Building located at 500 Poydras Street, New Orleans, Louisiana (“Hale Boggs Building”), with no intent to commit a felony, but rather an intent to engage in political speech with respect to pending national healthcare legislation (the “Healthcare Bill”). During the several days before their entry to the Hale Boggs building, Defendants discussed opportunities to engage in independent journalism and political advocacy. One of the ideas raised during those discussions was a method to test the truthfulness of Senator Landrieu’s statements as to the reason for the inability of Tea Party members and other Louisiana constituents to contact her staff on the telephone to discuss her vote on the Healthcare Bill. The Defendants were advised that this was a recent story in the news in New Orleans.

Prior to the Defendants’ arrival in New Orleans there had been picketing of the Senator’s office by Tea Party Members and others. The controversy about Senator Landrieu’s phones was described in a prior news article as follows:

“We were stunned to learn that so many phone calls to Senator Landrieu have been unanswered and met with continuous busy signals,” Perkins said. “We asked them to call their Senators. They could get through to Senator Vitter, but not Senator Landrieu.”

“Our lines have been jammed for weeks, and I apologize,” Landrieu said in interview after giving a speech on the Senate floor Tuesday.

As a result, the Defendants devised what was, in retrospect, a poorly thought out plan to test the veracity of Senator Landrieu’s statements. The plan settled upon was for two of the Defendants to dress as telephone repairmen and, wearing an audio and video camera hidden in one of the hard hats they wore as part of their disguise, enter Senator Landrieu’s office and interview her staff while a third Defendant recorded the interviews using a second audio and video camera.

The group devised a plan involving disguises because they believed that if they simply entered Senator Landrieu’s office and identified themselves as journalists they would not likely receive truthful answers. They thought it likely that Senator Landrieu’s staff would be more candid with a repairman than a reporter. Looking back, the Defendants now recognize clearly that this plan was imprudent, and produced unintended security concerns and consequences that none of the Defendants anticipated. The Defendants agree that they should have anticipated these consequences and regret that they decided to proceed in that fashion.

Upon entering the Hale Boggs Building, the Defendants presented their real drivers license identifications to security officials and were not questioned as to the purpose of their visit to the Hale Boggs Building or where in the Hale Boggs Building they were going. Before passing through security, the Defendants placed all of their equipment (including all recording and video devices) through the security x-ray machines, as requested by the Hale Boggs Building security employees.

After passing through the Hale Boggs Building security checkpoint, the Defendants proceeded to the 10th floor, where Senator Landrieu’s office is located. Senator Landrieu’s office was and is open to the public and the Defendants entered through its open door. They spoke with members of Senator Landrieu’s staff, then separately left the Senator’s office and exited the Hale Boggs Building.

A short time later, the Defendants were “detained” by Federal Marshals. They believed they would be released when the US Marshals realized that they were journalists and immediately explained to the commanding US Marshal that they were journalists investigating whether Senator Landrieu wasn’t answering her calls.

Despite truthfully explaining, in detail, to the FBI and Federal Marshals that their purpose was solely to ask questions (and record the questions and answers) of Senator Landrieu’s staff regarding recently published statements by constituents that calls to Senator Landrieu’s staff concerning her vote in favor of the pending Healthcare Bill were not being returned and about the Senator’s public statement that her office phones had been “jammed,” Defendants were charged in a criminal complaint with a felony:

by false and fraudulent pretense enter and attempt to enter real property belonging to the United States of America with the intent to commit a felony: to wit, willful and malicious[s] interference with a working and use of a telephone system operated and controlled by the United States; in violation of Title 18 United States Code Section(s) 1036(a)(1), 1362, and 2.

At approximately 8 pm, the Defendants were taken from the Federal Building to the St. Bernard Parish Jail. The Defendants remained in jail overnight and were then transported the next afternoon in red jumpsuits and hand and leg irons back to the Hale Boggs Building where they were “arraigned” before Magistrate Judge Louis Moore, Jr., who released them on personal bonds of $10,000.

O’Keefe clarified to me that he and his companions entered only the public reception area of Sen. Landrieu’s office.

More to come later today, including a post about the First Amendment implications of the judge ordering the destruction of the footage of O’Keefe’s foray into Landrieu’s offices, and a post about New York Magazine‘s retraction of the errors I highlighted here the other day.

UPDATE: My post about the court-ordered destruction of footage of a Landrieu staffer admitting there had been no problem with the Senator’s phones, here.

As I noted in a more detailed post below, the Government sought to bury this admission by omitting it from their press release, and attempting to avoid reading it aloud in court when setting forth the factual basis.

I have updated that post to note that I have now obtained the filed version of the document, with the signature of the Government’s representative.

Now I think it’s time to start asking the U.S. Attorney’s Office why they tried to hide this language from the public.

The U.S. Attorney’s Office for the Eastern District of Louisiana has filed a court document admitting that James O’Keefe did not intend to tamper with the phones at Mary Landrieu’s office, or commit any other felony.

Oh — and the good folks at the Department of Justice don’t particularly want you to know that. This post reveals that, at O’Keefe’s hearing, the Assistant U.S. Attorney tried not to read that part of the document in court. What’s more, the U.S. Attorney pointedly omitted this critical information from their press release.

5/27/2010

Recall the background: James O’Keefe surreptitiously taped himself and two companions in Senator Mary Landrieu’s office. He has maintained from the beginning that he was engaged in undercover journalism, attempting to expose whether Landrieu actually had a problem with her phones that would explain why constituents received busy signals when they called about her position on ObamaCare. The government, by contrast, charged O’Keefe with intending to commit a felony, suggesting that the behavior of O’Keefe and his companions showed that they intended to do something nefarious and felonious inside the office.

Ultimately, the government apparently could not prove its case, and yesterday gave O’Keefe a misdemeanor — presumably because they lacked proof of this felonious intent.

I have said from the beginning that viewing the tape would shed light on this. After all, O’Keefe was making an undercover tape. It has all the evidence on it. That tape would reveal whether O’Keefe is telling the truth.

And now the judge has ordered that potentially exculpatory evidence destroyed.

I contacted O’Keefe last night to ask when we could expect to see this tape. He told me that he wanted the tape back, but that the judge had said in open court that he wanted it destroyed, and instructed federal agents to destroy the evidence before returning the camera to O’Keefe.

I find this astounding — first, that O’Keefe got this far in the proceedings without the government disclosing the key evidence in the case to him and his attorney, and second, that the evidence will now be destroyed.

Why destroy it? To my knowledge, O’Keefe and his companions never accessed any part of the office that was not open to the public. They did not receive any sensitive information regarding Sen. Landrieu’s phone lines that would be useful to a terrorist.

And if O’Keefe is telling the truth, the tape would exonerate him in the public eye.

O’Keefe wants the tape back. The judge told the government not to let him have it.

5/26/2010

When we read this morning that ACORN-sting videographer James O’Keefe pleaded guilty today to attempting to tamper with the phones in Louisiana senator Mary Landrieu’s office, we wondered how Andrew Breitbart would react.

The story links to another story at New York Magazine bearing the headline: “Activist James O’Keefe Pleads Guilty to Tampering With Senator’s Phones.” Wow — all of a sudden he’s not just “attempting to” tamper with the phones (which he never did) . . . in the headline they claim he actually pled guilty to tampering with the phones (which he didn’t do and didn’t plead guilty to). Here is the text of their bogus and false story:

Andrew Breitbart acolyte and sorta ACORN stinger James O’Keefe pleaded guilty, along with three other conservative activists, of trying to tamper with the phones in Louisiana senator Mary Landrieu’s office. O’Keefe, 25, will get three years probation, 100 hours of community service, and a $1,500 fine, but will no longer, presumably, be grounded. [WP]

False.

Let’s get screenshots in case they try to do a stealth correction, shall we? We shall.

When conservative activists James O’Keefe and Hannah Giles released tapes last fall purporting to show ACORN employees advising them on how to set up a child prostitution ring, it resulted in widespread praise for their intrepid journalism and a Congressional defunding of the anti-poverty group. But it is now becoming clear to all but their most fervent supporters that the O’Keefe “expose” was deliberately misleading.

“If you were a member of Congress and you voted to defund ACORN because of the outrage portrayed in these tapes,” MSNBC’s Rachel Maddow proclaimed on Tuesday, “you were had.”

Last week, California Attorney Gerneral Jerry Brown released some of O’Keefe’s raw footage, which he obtained as part of an agreement not to prosecute O’Keefe for violating state privacy laws. Maddow reviewed several of the most severe distortions revealed by the footage, starting with O’Keefe’s claim that he was wearing his outrageous pimp outfit when he visited the ACORN offices.

I am unaware of any such claim. I know O’Keefe has been faulted, with some justice, for failing to contradict a Fox News yakker who made that claim in his presence. I’m inclined to go easy on him for that, because I think it’s easy to criticize people for on-the-fly decisions (especially decisions not to act) made while facing a nationwide audience on TV. In any event, a failure to contradict is not a “claim.”

Now, some yahoos like Maddow have tried to argue that O’Keefe tried to hide the fact that he was wearing normal clothes in ACORN offices. Here is a screenshot from the very seconds of the very first video O’Keefe ever released:

The accompanying voiceover:

Scenario: a young woman pretending to be a prostitute and a man pretending to run for Congress one day walk into ACORN’s Baltimore Headquarters . . .

Remember, the Rachel Maddows of the world maintain that O’Keefe hid the fact that was actually wearing normal clothing, and pretended to be someone running for Congress. Click the link, watch the first 20 seconds of the ACORN video, and marvel at the fact that Rachel Maddow claims O’Keefe was trying to hide these facts. He hid his normal mode of dress and his character’s future Congressional campaign about as well as Maddow hides her leftism.

4/1/2010

California Attorney General Edmund G. “Jerry” Brown, Jr. has completed his investigation and there’s good news and bad news for everyone, although in general Brown does his best to bolster ACORN and damage O’Keefe. Here is the Attorney General’s press release:

“California Attorney General Edmund G. Brown Jr. today released a report, including newly obtained videotapes, that shows some members of the community organizing group ACORN engaged in “highly inappropriate behavior,” but committed no violation of criminal laws.

Brown’s report also uncovered “likely violations” of state law, including dumping 500 pages of confidential records into a dumpster, failure to file a 2007 tax return, and four instances of possible voter registration fraud by ACORN in San Diego in connection with the 2008 election, as well as other irregularities in the group’s California operations. These irregularities have been referred to the appropriate authorities.

Last September, Gov. Schwarzenegger asked Brown to investigate the activities of ACORN in California. His request was triggered by tapes made by undercover videographer James O’Keefe III that purported to show ACORN employees providing advice on how to conduct a prostitution ring and commit other serious crimes.

But new, unedited videotapes discovered through Brown’s investigation, as well as other evidence, shed clearer light on interactions between O’Keefe and the now-defunct ACORN.

Videotapes secretly recorded last summer and severely edited by O’Keefe seemed to show ACORN employees encouraging a “pimp” (O’Keefe) and his “prostitute,” actually a Florida college student named Hannah Miles, in conversations involving prostitution by underage girls, human trafficking and cheating on taxes. Those videos created a media sensation.

Evidence obtained by Brown tells a somewhat different story, however, as reflected in three videotapes made at ACORN locations in California. One ACORN worker in San Diego called the cops. Another ACORN worker in San Bernardino caught on to the scheme and played along with it, claiming among other things that she had murdered her abusive husband. Her two former husbands are alive and well, the Attorney General’s report noted. At the beginning and end of the Internet videos, O’Keefe was dressed as a 1970s Superfly pimp, but in his actual taped sessions with ACORN workers, he was dressed in a shirt and tie, presented himself as a law student, and said he planned to use the prostitution proceeds to run for Congress. He never claimed he was a pimp.

“The evidence illustrates,” Brown said, “that things are not always as partisan zealots portray them through highly selective editing of reality. Sometimes a fuller truth is found on the cutting room floor.”

The original storm of publicity created by O’Keefe’s videotapes was instrumental in ACORN’s subsequent denunciation in Congress, a sudden tourniquet on its funding, and the organization’s eventual collapse.

In New Orleans, O’Keefe faces a maximum sentence of six months in prison and a fine of $5,000 on reduced federal charges related to misrepresentation in gaining access to the Louisiana office telephones of U.S. Senator Mary Landrieu.

– Failure to “recruit, train and monitor its employees to ensure compliance” with state law.

– Likely violation of state civil laws designed to protect personal information when employees of the San Diego office disposed of 20,000 pages of records in a dumpster. These violations could result in private litigation if any of the victims were injured by disclosure.

– Four instances of “possible voter registration fraud in San Diego in connection with the 2008 election.”

– Failure to file a 2007 state tax return, an omission the Franchise Tax Board is pursuing.

– Sloppiness in its handling of charitable assets, although no misuse of those assets was found. The California Attorney General will monitor investigations into ACORN’s overall finances by the IRS and Louisiana Attorney General.

ACORN announced that it is closing its operations nationwide today. While a successor to ACORN in California called ACCE emphasizes that it is no longer part of ACORN, the Attorney General’s report notes that ACCE is “run by the same people, raising concerns about its ability to cure the defects in the organization.” The report notes that the Attorney General will closely scrutinize ACCE’s operations.

The full Attorney General’s report is attached. The unedited O’Keefe videotapes from California are available on the Attorney General’s website at http://ag.ca.gov/newsalerts/multimedia/index.php. Tapes from other states are available on request.”

A PDF of the AG’s full ACORN report is here and the attachments are here. In addition, links to audio and video regarding the California ACORN office are here. I haven’t looked at everything yet but some things that stand out:

That “new, unedited videotapes discovered through Brown’s investigation, as well as other evidence, shed clearer light on interactions between O’Keefe and the now-defunct ACORN.”

What “new, unedited videotapes”?

Brown says tapes were “severely edited by O’Keefe” and also that “Evidence obtained by Brown tells a somewhat different story …”

Really? I need to read the complete report because I’d like to know what this refers to.

Brown says O’Keefe “never claimed he was a pimp …”

That sounds like a clever, parsing way to avoid saying O’Keefe posed as a pimp.

Brown found likely violations of state law, including:

— “Likely violation of state civil laws designed to protect personal information when employees of the San Diego office disposed of 20,000 pages of records in a dumpster ***;

— Four instances of “possible voter registration fraud in San Diego in connection with the 2008 election”;

— Failure to file a 2007 state tax return, an omission the Franchise Tax Board is pursuing.”

Brown says ACORN is closing its offices nationwide but also notes that ACORN’s successor organization, ACCE, remains open and “the Attorney General will closely scrutinize ACCE’s operations.”

I hope he means that.

Finally, I’d like to see someone request release of the tapes from other states (the press release indicates Brown has them and that they are available by request), especially the tape that was never fully released because of pending litigation.

“Before the 2008 election, Wisconsin’s Attorney General J. B. Van Hollen and Milwaukee County District Attorney John Chisolm formed a special task force to combat attempts to pervert elections, especially in Milwaukee, where most of the problems occurred in 2004.

Today, Van Hollen announced indictments in five cases — including two felony indictments against ACORN for scheming to have registrants vote multiple times in November 2008.”

***[EDIT: See the Updates below and at the original link.] ***

Details of the allegations are at the link.

— DRJ

UPDATE 3/9/2010: Ed Morrissey added this correction:

“Update IV: Brad from Brad’s Blog takes me to task — rightly — for some very sloppy writing in my second paragraph. The indictments were not filed against ACORN, but against two of their employees. That’s not the same thing, and I’ve corrected the paragraph to make it more specific and accurate. I apologize for the confusion that caused anyone.”

UPDATE 2 — And this:

“Update V: The crimes related to registrations, not actual voting; I’ve amended that paragraph to show that.”

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